Judges Rebuff Justice Dept. in 3 FOIA Cases

WASHINGTON — A judge has ruled that a paper prepared during free trade negotiations can't be kept secret, a rare court order to reveal a classified document and one of three significant losses the Justice Department has suffered recently over open records.

In the other two Freedom of Information Act opinions issued at the federal court in Washington, judges ruled that protecting the privacy of congressmen is not enough reason to withhold records about corruption investigations into the lawmakers.

The U.S. Trade Representative has been ordered to turn over a position paper prepared during negotiations for a Free Trade Agreement of the Americas, conducted in the 1990s and 2000s, which never resulted in a deal. U.S. District Judge Richard Roberts ruled Wednesday there were no plausible or logical explanations to justify its secrecy.

The Justice Department had argued that disclosure of the document would damage foreign relations since it agreed with other nations that documents produced during the negotiations would not be made public.

But Roberts, siding with the Center for International Environmental Law, cited the member nations' agreement that all documents produced during negotiations would be publicly available at the end of next year unless a country objected to the release of one of its own documents. He said that was evidence that the confidentiality was meant to give the participating nations a way to release their own materials, rather than keep other countries from releasing theirs.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said it's unusual for a judge to order the release of classified documents. But she said she thinks judges are increasingly willing to question why documents are classified, after deferring more readily to the executive branch's secrecy decisions following the Sept. 11 terrorist attacks.

"I think what we've discovered over the last 10 years or so is that too much information gets classified, too many people have the ability to classify and a lot of things are unnecessarily classified," she said. "So I think the executive branch has lost some credibility over what needs to be classified. There are a few more judges willing to say, 'Sorry you didn't hit the mark that time.' But they still are going to defer to the executive branch most of the time."

The Justice Department's latest FOIA loss came Friday over the investigation into Rep. Jerry Lewis, R-Calif. The government watchdog group Citizens for Responsibility and Ethics in Washington wants records of the department's closed investigation into allegations the congressman got federal dollars in exchange for political donations to learn why he wasn't prosecuted. The Justice Department flatly denied the request, citing Lewis' privacy rights.

But U.S. District Judge James Boasberg ruled privacy is not a good enough reason to withhold documents with such public interest at stake. He ordered the department to list each document it wants to withhold and explain why it should be able to do so, acknowledging the department may ultimately have other valid reasons to withhold most — if not all — of the Lewis files.

In his ruling, Boasberg cited a similar opinion reached in January by U.S. District Judge Gladys Kessler in a lawsuit by Citizens for Responsibility and Ethics in Washington seeking investigative records of Rep. Don Young, R-Alaska.

Congress asked the Justice Department in 2008 to investigate Young's role in securing a $10 million congressional "earmark" to widen a Florida highway, a project that would have benefited a developer who helped raise money for the lawmaker.

Both Lewis and Young have denied any wrongdoing.

"It is difficult to understand how there could not be a substantial public interest in disclosure of documents regarding the manner in which DoJ (Department of Justice) handled high-profile allegations of public corruption about an elected official," Kessler wrote in a passage Boasberg quoted in his ruling. "Clearly, the American public has a right to know about the manner in which its representatives are conducting themselves and whether the government agency responsible for investigating and, if warranted, prosecuting those representatives for alleged illegal conduct is doing its job."